Tuesday, April 24, 2012

Yesterday, seven bishops of the Episcopal Church (USA) -- five active, and two resigned (retired) -- joined the three Episcopal priests in the Anglican Communion Institute in filing an amicus curiae ("friend of the court") brief in the Texas Supreme Court appeal brought by Bishop Jack L. Iker and his Episcopal Diocese of Fort Worth to overturn the summary judgment granted by the District Court in favor of ECUSA and its rump diocese and parishes. The arguments in the brief present a view directly contrary to the view expressed in the case by the Church's attorneys that ECUSA is "hierarchical."

[Side note: Despite all the magic hand-waving by ECUSA's Presiding Bishop and its General Convention, there is one and only one way to have a diocese become a member of the association of dioceses known as the Protestant Episcopal Church in the United States of America. That one way is spelled out, in very clear words, in Article V of ECUSA's Constitution, and it has not changed in over 200 years. The faux "Diocese of Fort Worth" is here so called (and also denominated with adjectives like "rump", "Potemkin", "ersatz", or similar words) because it has not gone through that constitutional procedure. Unless and until it does, it is not a genuine ECUSA diocese, no matter how many official pronouncements issue from no matter what quarter of the Church. End of side note.]

Earlier, the merits brief filed with the Court by ECUSA's attorneys contained the following statement at pp. 24-25:

As every court in the nation that has addressed the question has concluded, The Episcopal Church is a hierarchical church [footnote omitted]. The undisputed evidence in this case confirms that conclusion. The Church’s governing documents clearly reflect the Church’s three-tier structure, with the General Convention at the top tier.

The amicus brief just filed, on the other hand, states at p. 16:

In this dispute, both sides do in fact agree that there is no explicit language in The Episcopal Church’s governing constitution identifying in express legal terms of hierarchy or supremacy any central body or office allegedly superior to the diocesan bishop [footnote omitted]. Indeed, none of the following terms routinely used in legal documents to indicate hierarchical priority is found at all in The Episcopal Church constitution: “supreme”; “supremacy”; “highest”; “hierarchical”; “subordinate”; “sole”; “preempt”; and “final.”

So how could all those courts trumpeted (in the omitted footnote) in ECUSA's brief have found that ECUSA was "hierarchical"? Simple.

ECUSA's attorneys are playing their usual game of "look over there while we hide the ball over here." All of the cases cited by ECUSA as making that finding were cases involving relationships between bishops/dioceses, on the one side, vs. clergy/parishes on the other.

But the Fort Worth case is not that case: it involves one bishop and his diocese against other dioceses and their bishops who have joined into an association.
Bishop Iker and his diocese withdrew from the association, as was their constitutional right under the First Amendment's freedom of association. The other bishops and their dioceses have sued Bishop Iker and his diocese for all of the diocesan properties and bank accounts.

Since when does an association to which you belong have the right to claim all of your property if you decide to leave it?
(Hint to ECUSA and its attorneys: the Dennis Canon, which the dioceses and bishops invoked with the Church in those "many cases" alluded to earlier, makes a claim only to parish property, and not to the property of a diocese as such. So your argument that dioceses have to surrender their property upon withdrawal is without precedent in Church history, and indeed is specifically contradicted by its history during the Civil War.)

For ECUSA and its attorneys, all they have to do is wave the magic word "hierarchical" about, and courts must allow their claims. That is why the amicus brief filed by some of its own clergy, which points out the Emperor's lack of clothes on this occasion, must be both an embarrassment, and also no small irritant. After all, if the "Church" is at the top of the "three-tiered hierarchy," why can't the "Church" keeps its bishops and clergy in line?

Well, could it?

Could the leaders of ECUSA now lodge disciplinary charges under the new Title IV (that went into effect last July) against the seven bishops and three priests who have dared to defy them in open court, in an act no less brave than that of the Burghers of Calais? Let's go be a fly on the wall at 815, and see:

Scene: in a conference room in the chambers of the Presiding Bishop at 815 Second Avenue, New York City. Huddled together at a table are the Presiding Bishop, her Chancellor, and her Special Presidential Assistant for Litigation.

CHANCELLOR: The offenses for which a bishop or clergy may be charged under new Canon IV.3 include "knowingly violating or attempting to violate, directly or through the acts of another person, the Constitution or Canons of the Church or of any Diocese. . . ." The problem is that there is no Constitutional or canonical provision I can find in the entire Church which says that you cannot file briefs as a friend of the court. So, Mary, what else might we try?

SPECIAL ASSISTANT FOR LITIGATION: Well, under new Canon IV.4, all clergy in the Church must abide by certain "standards of conduct," such as these:

(b) conform to the Rubrics of the Book of Common Prayer;
(c) abide by the promises and vows made when ordained;

PRESIDING BISHOP: The BCP says nothing about amicus briefs, and I'm pretty sure the ordination vows don't, either. Couldn't I simply issue these meddlesome priests a Pastoral Directive to stay out of the Fort Worth proceedings? Then we could charge them with insubordination.

SPECIAL ASSISTANT FOR LITIGATION: But you would have had to issue the Directive before they filed the brief. I'm afraid we forgot to include any authority to issue Pastoral Directives on an ex post facto basis.

CHANCELLOR: Mary, dammit, make a note of that for the next GC.

SPECIAL ASSISTANT FOR LITIGATION: What about the requirement in subsection (e) to "safeguard the property and funds of the Church and Community"? Surely what they've done fails to safeguard our right to +Iker's property.

CHANCELLOR: They would simply argue that that's the very question involved in the Fort Worth case, and that until the Court decides it, we won't know whether it's our property or not. Besides, we're saving the first case under that section for Bishop Lawrence, as you know. We can't risk establishing a bad precedent with others first.

PRESIDING BISHOP: Wait -- there's this: it says in (h)(2) that all clergy in the Church must refrain from "holding and teaching publicly or privately, and advisedly, any Doctrine contrary to that held by the Church...". Couldn't we pretend, David, that whatever you write in any of our briefs in these cases was Church doctrine?

CHANCELLOR: Nice try, Bishop Katharine, but that canon has "Doctrine" with a capital "D". And that's a term defined in Canon IV.2 [reads]:

Doctrine shall mean the basic and essential teachings of the Church and is to be found in the Canon of Holy Scripture as understood in the Apostles and Nicene Creeds and in the sacramental rites, the Ordinal and Catechism of the Book of Common Prayer.

PRESIDING BISHOP: Not a great loss, I guess. I don't really put much stock in that Canon anyway, since the trial of Bishop Righter.

CHANCELLOR [beneath his breath]: So some have observed.

PRESIDING BISHOP [sharply looking at the Chancellor]: What's that you say?

CHANCELLOR: Nothing. I just said that was an astute observation. [Pauses.] It looks to me, Mary, as though we've got only one charge left.

SPECIAL ASSISTANT FOR LITIGATION: You mean, the "catch-all"?

CHANCELLOR: The very one. [In a mockingly spectral voice:] Conduct Unbecoming a Member of the Clergy.

PRESIDING BISHOP: But hasn't that got its own special definition, too? Seems to me I remember something about dear old "Chuckles" Bennison...

SPECIAL ASSISTANT FOR LITIGATION: You are right, Your Grace. The term is defined as [reads]:

... any disorder or neglect that prejudices the reputation, good order and discipline of the Church, or any conduct of a nature to bring material discredit upon the Church or the Holy Orders conferred by the Church.

PRESIDING BISHOP: Well, there we have it, then -- I can charge them with "conduct unbecoming a member of the clergy." Mary, you draw up the charges, and run them by David before bringing them to me to sign.

SPECIAL ASSISTANT FOR LITIGATION: But what's the specific violation?

PRESIDING BISHOP: Don't you see? They have written words to say that we are not "hierarchical" -- and not only that, they had the nerve to file them in a court proceeding adverse to us. They accused us, in essence of not speaking the truth. That is certainly intended to bring discredit on us.

SPECIAL ASSISTANT FOR LITIGATION: But won't they just respond that they were the ones speaking the truth?

PRESIDING BISHOP: What's wrong with you, Mary? Have you forgotten what it says in John 18:38? [Reads:]
"Pilate asked: what is truth?"

SPECIAL ASSISTANT FOR LITIGATION: But didn't Pilate say that in response to Jesus's statement that he came to testify to the truth?

PRESIDING BISHOP: Exactly, Mary -- good for you. If Jesus Christ could get into trouble for speaking the truth in a court of law, then so can these infernal bishops. Now, draw up the charges!

9 comments:

Ha ha ha!! Ha, ha, ha!!! How do we manage to place observers into those rooms?

A couple of the names on the roster of the Amicus are a bit surprising, and a bit encouraging as well. Good news is always good to read. We tend to mope sometimes, so let us celebrate a bit now, even if discreetly. Friar Tuck would allow it!

Beginning late last year I had begun to wonder if anyone was ever going to formally challenge the blatantly delusional claim of a "three-tiered hierarchy" made by ECUSA. I almost wrote you to ask for the email of someone advising Fort Worth, et al, in order that I might ask them why it had not yet been raised by any one, or more, of the dioceses involved.

Surely, I thought to myself, if someone points out to the court the procedural requirements you raise, which were documented in the earlier paper Is the Episcopal Church Hierarchical? written by Mr. Mark McCall, the court must reexamine the question of its own approach, i.e., deference or neutral principles. We have known since the publication of that paper that the Episcopal Church has no identifiable "highest judicatory" beyond the diocesan ordinary, and that the almost inevitable result must therefore be that the court would need to avoid involving itself with doctrinal issues by applying neutral principles. We have also known from the beginning that ECUSA's claims of prevailing in other courts was flawed because those other cases were not commensurable. Another question which likely should have been placed before the court at a much earlier stage. Had it been done, it might have saved the Judge in Virginia from what I can only view as his having embarrassed himself by finding the Dennis Canon invalid, yet finding that the parishes' properties were encumbered anyway.

I am much relieved to see that this argument is now being brought explicitly to bear. And, although I am neither a judge nor a lawyer (canon or otherwise), I do not see how ECUSA can avoid having to deal with its repeated mangling of the English language to pretend it is something it is not. I pray that this will assist the courts in coming to the only rational conclusion that appears possible.

After reading the brief and agreeing with nearly all of it, I'm puzzled about some matters which seem to relate to the status of bishops within Anglicanism. First, is it really accurate to say that Bp. Iker has technically been "disciplined' by ECUSA, using "discipline" as an artful term and not in a loose sense (granting that ECUSA's PB seems to have declared himk to have embarked on a journey of UA/AWOL from the diocese and ECUSA). As I recall the brief stating, Bp. Iker hasn't technically quit any post or tendered anything to ECUSA indicating that is the case, and thus ECUSA seems--perhaps at its peril,legally--to have so far waived formal disciplinary action against him (cf. the recent Bp. Lawrence investigation). Second, if ECUSA is, in essence, relying on its finding that Bp. Iker is in essence UA/AWOL from the diocese and ECUSA, does this hold up in Anglican church law historically (in addition to the North/South situation that existed in PECUSA during the Civil War) In the 18th c. weren't there CofE bishops active in the Methodist movement and when the movement evolved into a separate denomination, didn't these bishops continue as CofE bishops as well as continuing to have a connection with English Methodism? Thus, third, is it the case that in the absence of effective discipline in a legal sense by ECUSA, Bp. Iker (and perhaps other diocesans) continue to hold their post as a diocesan in ECUSA regardless of any connection with another religious body?

williamp, you are correct that ECUSA never disciplined Bishop Iker -- and it cannot now legitimately claim to have done so. By treating his press statement as a "voluntary renunciation", the PB necessarily admitted that Bishop Iker was under no disciplinary impediment at the time -- otherwise, she would not have been able to "accept" his "statement of renunciation." So, in effect, she is now hoist by her own petard, and cannot claim that the HoB "disciplined" Bishop Iker. (See pp. 18-19 of the brief.)

The same consideration supplies the answer to your second question. Since ECUSA never deposed Bishop Iker as a matter of discipline, and never found that he had "abandoned the communion of this Church", but only claimed that he had "voluntarily renounced his orders", it cannot now assert that he is AWOL from his Diocese, because ECUSA excused him from that duty by "accepting" his "renunciation."

In answer to your third question, the fact that ECUSA has never legitimately deposed Bishop Iker would indeed constitute proof that he remains in the HoB -- until they depose him "by a majority of the whole number of bishops entitled to vote in the House of Bishops" (i.e., by 151+ votes). Such a vote will never happen, and so technically, Bishop Iker remains a member of ECUSA's HoB.

Although Judge Chupp asked your very same question during an early hearing in the case, he did not follow that same logic in issuing his final ruling. Indeed, his final ruling was anything but logical -- it was a simple capitulation to ECUSA and its attorneys. Given his abdication of his role, it will be up to the Texas Supreme Court to give logic its proper due.

Mr. Haley, Thanks you very much for your response to my post. This gist of this matter appears to me to be summarized by the expression "Saying so doesn't make it so". I'm not aware of a legitimate canonical basis for a determination by ECUSA's PB--acting apparently on her own--of a Bishop's "voluntary renunciation" of orders, and, in effect placing such bishop "off the rolls." As I recall, civil law in this country clearly requires religious bodies to follow the procedures they have established--definitely something that should not be taken lightly where civil matters are involved.

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